11/25. The Senate amended and passed
S 877,
the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of
2003", also known as the "CAN-SPAM Act of 2003", by voice vote.

The Senate passed its first version of the bill on October 22, 2003 by a vote
of 97-0. See, TLJ story titled "Senate
Passes Burns Wyden Anti-Spam Bill" in TLJ Daily E-Mail Alert No.
765, October 24, 2003. On November 22, the House passed another version of the bill by a vote of
392-5. See,
Roll Call No.
671. See also, story titled "House Passes Spam Bill" in TLJ Daily E-Mail Alert
No. 785, November 24, 2003.

The bill just passed by the Senate is a third version. Hence, the Congress
has not yet passed a spam bill.

Sen. Conrad Burns (R-MT), a sponsor of
the bill, issued a
release that states that "The House of Representatives is expected to give
final approval in December for the President's signature into law." On Tuesday
afternoon, November 25, the House went into recess until December 8.

The bill contains numerous changes. For example, the bill would expand the
scope of activities encompassed by counterfeit labeling to include such things
as using genuine labels with an item for which they were not intended, and altering
the number of authorized users of computer programs.

Currently, a "counterfeit label" is defined as "an identifying label or
container that appears to be genuine, but is not". The bill would add that a
"counterfeit label" also includes "a genuine certificate, licensing document,
registration card, or similar labeling component (i) that is used by the
copyright owner to verify that a phonorecord, a copy of a computer program, a
copy of a motion picture or other audiovisual work, or documentation or
packaging is not counterfeit or infringing of any copyright; and (ii) that is,
without the authorization of the copyright owner (I) distributed or intended for
distribution not in connection with the copy or phonorecord to which such
labeling component was intended to be affixed by the respective copyright owner;
or (II) in the case of a computer program, altered or removed to falsify the
number of authorized copies or users, type of authorized user, or edition or
version of the computer program".

This bill would also add a new subsection to Section 2318 that creates civil remedies for
violation of this section, including injunctive relief and actual or statutory
damages.

11/25. The U.S.
Court of Appeals (DCCir) issued its
opinion
[17 pages in PDF] in AT&T v. FCC, dismissing petitions for review of a
Federal Communications Commission (FCC)
declaratory ruling in a proceeding pertaining to charging access fees for access
to a wireless network. The Appeals Court wrote that the issues raised by the
petitions are not properly before the Appeals Court.

This is a consolidation of several petitions for review, filed by AT&T,
Sprint Spectrum and Cellco Partnership, of a declaratory ruling of the FCC
responding to a primary jurisdiction referral from the U.S. District Court (WDMo).

The Appeals Court wrote that "The referral arose during the course of
litigation between AT&T and Sprint in Missouri in which Sprint sought
compensation from AT&T for its use of Sprintís wireless network. AT&T removed
the case from state court to the federal district court, which then referred
specific questions to the FCC under the doctrine of primary jurisdiction. In its
referral order, the district court inquired of the FCC (1) whether Sprint may
charge access fees to AT&T for access to the Sprint PCS wireless network and, if
so, (2) the reasonableness of Sprintís charges."

The Appeals Court continued that "After receiving petitions for declaratory
rulings from both AT&T and Sprint,
along with public comments, the Commission held that Sprint is entitled to
collect access charges from AT&T only to the extent that a contract between the
parties imposes a payment obligation on AT&T. The FCC declined to determine the
reasonableness of any rate until after the district court determined whether the
parties are bound by a contract. Both AT&T and Sprint raise numerous challenges
to the Commissionís ruling, none of which are properly before this court for
review. Accordingly, we dismiss the petitions for review."

The Appeals Court held that the petitions of AT&T and Sprint are unripe for
review.

11/25. The Federal Communications Commission
(FCC) published three items related to its proceeding titled "In the Matter of
Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development
of Secondary Markets". First, it published in its web site an
Erratum
[2 pages in PDF] to its October 6, 2003 Report and Order (R&O) and Further Notice
of Proposed Rulemaking (FNPRM). Second, it published in the Federal Register its
notice of the adoption of final rules in this R&O. Third, it published
in the Federal Register a
notice
regarding its FNPRM.

The November 25 Erratum states that the October 6 item "determined that the particular
services affected by the Commissionís streamlined transfer and assignment application
processing policies were identical to those services encompassed within the spectrum
leasing policies. The text of one of the rule provisions, however, mistakenly
did not reflect this determination."

The notice of the R&O in the Federal Register (November 25, 2003, Vol. 68, No. 227,
at Pages 66252 - 66286) addresses the erratum, summarizes the new final rules in
this R&O, and provides that
most of the new rules take effect on January 26, 2004.

The notice of the FNPRM in the Federal Register (November 25, 2003, Vol. 68,
No. 227, at Pages 66231 - 66251) summarizes the FNPRM and confirms the deadlines
for public comments. Comments are due December 5, 2003. Reply comments are due
January 5, 2004.

11/21. Rep. Richard Baker (R-LA),
Rep. Anna Eshoo (D-CA),
Rep. David Dreier (R-CA), introduced
HR 3574,
the "Stock Option Accounting Reform Act". This is the House companion bill to
S 1890,
introduced by Sen. Mike Enzi (R-WY),
Sen. Harry Reid (D-NV) and others on
November 19. These bills would require the expensing of stock options, but only
for the top five executives of companies, with exemptions for small businesses
and start ups. HR 3574 was referred to the
House Financial Services Committee.
Rep. Baker is the Chairman of its Subcommittee on Capital Markets, Insurance and
Government Sponsored Enterprises. The other original cosponsors of the House
bill are Rep. Mark Kennedy (R-MN), Rep.
Mike Honda (D-CA), Rep. Ellen
Tauscher (D-CA), Rep. Zoe Lofgren
(D-CA), and Rep. Eric Cantor (R-VA).
See also, story titled "Senators Introduce Bill to Require Expensing of Stock
Options Granted to Officers" in TLJ Daily E-Mail Alert No. 784, November 21,
2003.

More News

11/21. Karen Evans, who is the Administrator for E-Government, Information
and Technology Policy at the Office of
Management and Budget (OMB), wrote a
memorandum to the Chief Information Officers of executive branch agencies regarding
reports to the OMB under the E-Government Act of 2002. The memorandum states that "Agency reports are due from agency Chief
Information Officers to OMB on December 15, 2003 and should be submitted
electronically to Danny Costello at
dcostell@omb.eop.gov." On August 1, 2003, the OMB released a
memorandum [13
pages in PDF] regarding "Implementation Guidance for the E-Government Act of
2002". This memorandum, M-03-18, states that it "(1) outlines new E-Government
Act requirements for Federal agencies; (2) explains what agencies are expected
to provide under the E-Gov Act to support ongoing initiatives and new
activities, including reports; and (3) explains how the Act authorizes certain
ongoing governmentwide initiatives. This guidance also explains, throughout the
document, how the E-Government Act fits within existing IT policy, such as OMB
Circulars A-11 and
A-130."

Notice

The TLJ Daily E-Mail Alert will not be published on Thursday,
November 27.

Deadline to submit nominations to the
Department of Commerce's (DOC)
Technology Administration (TA) of
individuals for appointment to the National Medal of Technology Nomination
Evaluation Committee (NMTNEC). The TA states that "Typically, Committee
members are present or former Chief Executive Officers, former winners of the
National Medal of Technology; presidents or distinguished faculty of universities;
or senior executives of non-profit organizations." See,
notice in the Federal Register, October 27, 2003, Vol. 68, No. 207, at
Page 61190.

Deadline for the Federal
Communications Commission's (FCC) Media
Security and Reliability Council (MRSC) to complete voting on recommendations
regarding prevention and restoration measures to ensure the continued operation and
security of media facilities in the face of a national emergency. These recommendations
were presented at the biannual meeting of the MRSC on November 6, 2003. See, FCC
release [PDF].

Deadline to submit comments to the National
Intellectual Property Law Enforcement Coordination Council (NIPLECC) regarding
the agenda and mission of the NIPLECC. See,
notice in the Federal Register, October 28, 2003, Vol. 68, No. 208, at
Pages 61398-61399.

Monday, December 1

Deadline to submit reply comments to the Federal
Communications Commission (FCC) regarding its
Fourth Notice of Proposed Rulemaking [49 pages in PDF] in which it
proposes to make spectrum available to federal users that will be displaced
from the 1710-1850 MHz band to make it available for advanced wireless
services. See,
notice in the Federal Register September 2, 2003, Vol. 68, No. 169, at
Pages 52156 - 52168. See, also stories titled "FCC Releases NPRM Regarding
Allocating Spectrum to DOD to Replace Spectrum Allocated for 3G Services" in
TLJ Daily E-Mail
Alert No. 694, July 9, 2003, and "FCC Sets Deadlines for Comments
Regarding Spectrum Reallocations Relating to 3G Services" in TLJ Daily E-Mail
Alert No. 731, September 3, 2003. This is ET Docket No. 00-258 and WT Docket
No. 02-8.

10:30 AM - 3:00 PM. The Federal
Communications Commission (FCC) will hold a forum on Voice over Internet
Protocol (VOIP) issues. Subsequently, it will issue a Notice of Public Rule
Making (NPRM) "to inquire about the migration of voice services to IP-based
networks and gather public comment on the appropriate regulatory environment for
these services". See, FCC
release of November 6, 2003. See also,
agenda released on November 24, 2003.

Tuesday, December 2

9:00 AM - 4:30 PM. The Executive Office of the
President's (EOP) Office of Science and Technology
Policy's (OSTP) President's
Council of Advisors on Science and Technology (PCAST) will hold a meeting that
is open to the public. The PCAST's
notice in the Federal Register states that the agenda includes the following:
"(1) Discuss and, pending the discussion, approve a draft report from
its information technology manufacturing competitiveness subcommittee; (2)
discuss the preliminary observations and draft recommendations of its
workforce education subcommittee; and (3) continue its discussion of
nanotechnology and its review of the federal National Nanotechnology
Initiative." The notice states both that the meeting will be on December 2
and December 3. Stan Sokul, Executive Director of the OSTP, states that the
meeting is on December 2. For more information, contact Stan Sokul at 202 456-6070
or ssokul@ostp.eop.gov. Location:
Monticello Ballroom (lower level), Wyndham Washington Hotel, 1400 M Street, NW.

10:15 AM. The
Markle Foundation's Task Force on National
Security in the Information Age will hold a press briefing on its report titled
"Creating a Trusted Information Network for Homeland Security".
From 11:30 AM - 1:30 PM there will be a panel discussion. Lunch will be
served. RSVP to:
rsvp@neted.org or 202 638-4370. For
more information, contact Todd McGovern at
tmcgovern@markle.org or 212
713-7633. Location: Russell Caucus Room (SR-325), Russell Building.

11/25. President Bush nominated Mark Warshawsky to be Assistant
Secretary of the Treasury for Economic Policy. He is currently Deputy Assistant
Secretary for Economic Policy, Microeconomic Analysis. Before that, he worked
for the TIAA-CREF Institute. See, White House
release and
release.

11/25. President Bush appointed James Wilkinson to be Deputy Assistant
to the President and Deputy National Security Advisor for Communications. Bush
also appointed of Sean McCormack to be Special Assistant to the President
and Senior Director of the National Security Council Press Office. Both
appointments are be effective December 1, 2003. See, White House
release.

11/25. BellSouth announced numerous
appointments and departures among its top officers. See, BellSouth
release.

11/25. Michael Sears resigned as a member of Sprint's board of
directors, effective November 25, 2003. See, Sprint
release.

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